The Federalist Society Online Debate Series
Forum on Judge Bork's Article
"Individual Liberty and the Constitution"
July 9, 2008
In a recent article in "The American Spectator" Judge Bork set out some thoughts on individual liberty and the Constitution. In the following forum we provide excerpts from this article followed by some thoughts on it from Cato’s Vice President for Legal Affairs and Director, Center for Constitutional Studies, Roger Pilon, Northwestern Law Professor Steve Calabresi, New York University Law Professor Barry Friedman, and George Mason University School of Law Professor Jeremy Rabkin. (Further contributions from additional experts are to come.)
Updated on 7/11/08 at 10:22 AM
Judge Robert Bork
Selections from “Individual Liberty and the Constitution,” Robert Bork, The American Spectator, June 2008
Read the whole article HERE.
To consider liberty in relation to the Constitution is to enter upon a subject of some ambiguity. Which Constitution are we to consider? The document has undergone dramatic shifts in its coverage and in its meaning over the course of our history. The unamended document ratified in 1787 had little explicit to stay about individual liberties….The states were largely left to deal with issues of liberty as they saw fit...
...[R]adical changes affecting individual liberty have occurred with respect to congressional powers enumerated in Article I, Section 8 of the Constitution. But those changes are different in kind and origin than those displayed in the alterations of the meaning of the Bill of Rights. The idea of confining Congress to the enumerated powers of Article I, Section 8 (an idea reinforced by the 10th Amendment) is dead and cannot be revived. Contrary to some conservative fantasies, federalism was not killed by New Deal justices who perverted this aspect of the Constitution, but by the American people and the realities of national politics. The public wants a large and largely unrestrained national government, one capable of giving them what they want, irrespective of the limitations inherent in the enumeration of powers, and they will, sooner or later, get justices who will allow them such a government. The great engine of constitutional reform is mortality. (The boast that our Constitution has lasted for more than 200 years is largely empty. In no branch of government—legislative, executive, or judicial—are we living under the Constitution and the first 10 amendments as these were understood when ratified, respectively, in 1787 and 1791.)
The decline of federalism as a judicially enforced doctrine has had profound effects upon individual liberty, both positive and negative...
...Although the idea of liberty, in one of its many forms, lies behind various decisions under the Bill of Rights, the idea is most clearly seen in later cases where the Court does not and cannot plausibly relate its decision to any actual text.
Of these, the most notorious was the 1905 decision in Lochner v. New York striking down a state law setting maximum hours for bakers to work...[Justice Rufus Peckham] spoke for individual liberty in economic affairs and there is no reason in terms of philosophy to prefer other freedoms to economic freedoms. If the Court insists upon deciding cases according to philosophy rather than law—which it should not do—then it should consider reviving Lochner...
...The distinction between personal and economic liberties is obviously false. Property does not claim liberty, people who own property do; contracts do not seek liberty, people who want to enter into agreements do...
...The idea of liberty as the Constitution—or rather, a majority of the Court—understands it, moved to matters of individual choice in the personal and moral sphere. As Irving Kristol put it, the liberal ethos “aims simultaneously at political and social collectivism on the one hand and moral anarchy on the other.” We have seen that the Court willingly gave up the struggle against collectivism, including the economic variety. We will now turn to its encouragement of moral anarchy.
Moral anarchy is usually discussed as favoring liberty. It should not be. As such things as incessant vulgarity, obscenity and pornography, rap music celebrating the violent abuse of women and the killing of police proliferate, persons who want to live and raise families in a decent environment are deprived of a crucial liberty—one that they have tried to preserve through laws and regulation, only to find themselves overruled by courts entranced by the liberal ethos Kristol described. A few of the areas in which this is most clearly perceived are speech, religion, and sexuality...
It is not to be supposed that this continual evolution of the Constitution is entirely the work of the judiciary. Nor is it the work of the American public. The evolution proceeds, after all, by invalidating laws and actions that are the work of the electorate’s elected representatives. It is unmistakably the case that the Court’s work sometimes follows and sometimes leads opinion trends in America’s “elites”—university faculties, journalists, entertainers, foundation staffs, mainline churches, and governmental bureaucracies. These elites and the courts rely upon each other. The elites guide the judiciary and make the judges’ decisions acceptable to the public, while the judiciary gives finality to elite opinion in a way that cannot be overturned by legislation. The aristocracy that the anti-Federalists feared has been created and empowered in large part by the very Bill of Rights they demanded as a bulwark against aristocracy.
There are heavy costs to this development. One is the decline of individual liberty as the Constitution originally understood it. The first freedom, implicit and taken for granted in the design of the Constitution, is the power of individuals to participate in making the laws by which they are governed. When an activist judiciary steadily creates rights it calls “constitutional” but which have no plausible roots in the historic Constitution, that liberty is just as steadily decreased...
Though it is not usually discussed in those terms, an activist Court also attacks the individual’s interest in federalism and his nation’s sovereignty...
...Citizens lose both their freedom to leave a jurisdiction whose policies they dislike and the political freedom to try to change those policies at the ballot box. These were liberties the original Constitution assumed. Perhaps even further from the contemplation of the Founders is the recent inclination of a majority of the Court to create a transnational Constitution by reliance on foreign judicial decisions, legislation, and even resolutions and treaties the United States has not adopted or ratified...
...What the original Constitution and Bill of Rights had to say about individual liberty is a far cry from what the judicially amended Constitution has to say and will say in the future. When considering the prospects for liberty, we should bear in mind that absolute authority, a disdain for the historic Constitution, and philosophic incompetence are a lethal combination. The only solution apparent would appear to be the political defeat of our current elites accompanied by a defection of some members of the elites from their present monolithic attitudes. That may seem a utopian fantasy, but changes in the culture and the reading of the Constitution have occurred in the past. Though these changes have proved largely deleterious, they demonstrate that change is not only possible, but inevitable. Unless we assume that the culture war is irretrievably lost, and with it an increasing number of our liberties, our responsibility is to return our constitutional understanding as closely as possible to the first principles of the Founders’ plan.
Few have done more over the years to articulate the conservative response to liberal judicial activism than Judge Robert Bork. Writing recently in The American Spectator, he argues that courts, working reciprocally with elite opinion, have given constitutional finality to values most Americans oppose, “in a way that cannot be overturned by legislation.” Thus undermined is our “first freedom”—“the power of individuals to participate in making the laws by which they are governed.”
Bork is right about that. His concern, in particular, about the role of elite opinion in coarsening our culture is well taken. But my charge here is to comment critically, if briefly, so I turn to what I believe is the argument’s central flaw—nothing less than its constitutional vision, which keeps Bork from fully appreciating the main problem today, the triumph of the Progressive Era mindset.
At bottom, Bork’s constitutional vision rests not in individual but in collective liberty. Thus, his “first freedom” echoes his more ample discussion in The Tempting of America. There he wrote that our first principle is “that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Nonetheless, he adds, there are “some areas of life in which the individual must be free of majority rule.”
Calling those conflicting principles “the Madisonian dilemma,” Bork in fact has Madison standing on his head. Not only in the Declaration of Independence—our founding document—but in Madison’s Constitution as well we find individual liberty first, democratic rule second, as a means to securing liberty. The Preamble, in the state-of-nature tradition, makes it plain that all power rests originally with the people, as individuals. To be sure, they come together collectively to “ordain and establish this Constitution,” but then they “grant” only limited powers to the government that follows ratification. The undelegated powers are reserved to the states “or to the people,” as the Tenth Amendment says, never having been granted to either level of government.
Thus, given the enumeration of powers—“few and defined” (Madison, Federalist 45)—the vision that emerges, unlike Bork’s, is one of “wide areas” in which individuals are free simply because they’re born free; whereas in “some areas” majorities are entitled to rule because they’re so authorized. There, indeed, is the Constitution’s theory of legitimacy: power is legitimate only if constitutionally authorized.
The doctrine of enumerated powers is thus key to understanding the Constitution: absent a power, by implication there is a right. And the Ninth Amendment complements the Tenth by instructing us not to “deny or disparage” unenumerated rights “retained by the people.” The people cannot “retain” what they do not first have to be retained.
Unfortunately, Bork, a textualist, dismisses the Ninth Amendment—his famous “inkblot” remark. And he treats the Tenth Amendment as mainly about federalism: if federal powers are limited, states may experiment, and individuals may move. True, the freedom to migrate may flow indirectly from enumeration; but the main liberty the Tenth Amendment entails is that afforded directly by enumeration. Bork does not discuss that, however, saying simply that it was not New Deal justices who killed the limits imposed by the enumeration of powers but the people’s thirst for big government; sooner or later they will get justices who will allow that, he writes. Then it is justices after all.
Having thus disparaged the Constitution’s bedrock principle, the doctrine of enumerated powers, Bork turns to his main concern, what courts have done with the Bill of Rights. Disparaging that too, he notes that the Bill played almost no role in our courts until the last third of the 19th century; but he fails to mention why: it was because the limits imposed by enumeration were largely respected—by the political branches—and the Bill of Rights did not limit states, where most power resided, until 1868, when the Fourteenth Amendment was ratified.
We come thus to a major divide between conservatives and libertarians—between those at one end who believe the Fourteenth Amendment wrought few changes in our federalism; and those at the other end who believe it incorporated against the states, ab initio, not only most of the Bill of Rights but our common law and natural rights as well. The infamous Slaughterhouse Court of 1873 reflected that divide; it continues today, in many variations.
Bork leans clearly toward the former camp. His textualism notwithstanding, with the Slaughterhouse majority he has dismissed the Fourteenth Amendment’s Privileges or Immunities Clause, meant to be the principal font of rights under the amendment, as unknowable. He believes many Lochner-era decisions reflected not the Constitution but merely the values of contemporaneous elites. He disparages the judicial incorporation that began in the mid-20th century—although his view of Griswold, unlike Lawrence, is unclear. In sum, he sees modern courts reflecting the “moral relativism” of our elites as they invent rights nowhere in the Constitution.
Too often, regrettably, today’s courts do that: witness Roe v. Wade. But it is no answer to leave most things to the political branches. Nor does the Constitution force a choice between judicial and majoritarian tyranny. Rather, it leaves most things to private determination. If enumeration is the foundation of constitutional legitimacy, if the Ninth Amendment means what it says, and if the Fourteenth Amendment was intended to complete the Constitution by incorporating at last the principles of the Declaration, as the 39th Congress argued, then courts must mine those principles and carefully distinguish the political, the legal, and the private.
Griswold and Lawrence may reflect “moral relativism” regarding values, but not rights. Neither decision trampled anyone’s rights, or forced anyone to use contraceptives or practice sodomy; and life continued quite normally in both Connecticut and Texas. The Court said simply that those are matters for individual, not collective, liberty.
In a diverse society, however, collective liberty—voting—over disputed values too often violates rights. It was the preferred liberty of the Progressives, who eventually gave us Leviathan. The triumph of that collectivist mindset is what the Constitution—and the courts—were meant to prevent.
Judge Bork argues that it is impossible to return to the original understanding of the clauses of the Constitution that grant the federal government power. Enumerated powers is dead and to make matters worse unelected federal judges have stripped the states of much of the power that is rightfully theirs to legislate on matters of morality. I would only add that even state judges seem now to have gotten into the act. Both the Massachusetts and California Supreme Courts have found a hitherto unperceived constitutional right to gay marriage in their respective state Constitutions. Given the size of those two states alone, it is likely that all of the other forty-eight states will eventually have to rule on whether particular gay marriages performed in Massachusetts or California are or are not valid. These two states, alone, thus seem to be legalizing gay marriage, in effect, nationwide. Since only about fifty senators favor a federal constitutional amendment to define marriage as the union of one man and one woman, and since a two thirds vote is required to pass such an amendment, the nation appears to be on the verge of legally recognizing gay marriage all because of a few state judicial activists.
I propose that conservatives respond by throwing our support behind a federal statute to outlaw gay marriage at the state level. If enumerated powers is dead when liberals want to regulate wholly intrastate environmental, educational, and criminal law matters, why should constitutional niceties constrain social conservatives. This is especially the case given Judge Bork’s observations about the death of enumerated limits on federal power. A federal statute defining marriage nationwide as being only the union of one man and one woman could be passed by a simple majority of the Senate and the House – that is unless Senate Democrats choose to filibuster such a bill. And voters might actually sit up and take notice at that point. How many senators want to filibuster day and night for hours on end in defense of gay marriage? In fact, it is just as plausible to argue that the wholly intrastate destruction of traditional heterosexual marriage would substantially affect interstate commerce as it is to argue that growing wheat on your own farm for your own consumption does so. If the Supreme Court is going to uphold the constitutionality of the one form of legislation, it ought to uphold the other. If Congress can protect small endangered species that live entirely within a 15 acre zone in one state then surely Congress can protect an institution as important and as time honored as traditional heterosexual marriage. It would be interesting to hear what Barack Obama has to say about this?
Moreover, Congress’s power to protect traditional heterosexual marriage does not end with the Commerce and Necessary and Proper Clauses, as construed in Wickard v. Filburn and Gonzales v. Raich. Congress also has the power to guarantee every state “a republican form of government” – a phrase that the Supreme Court has left totally up to Congress to define. Congress could and should conclude that state judicial activism is foisting gay marriage on the people of Massachusetts and California in direct contravention of the popular will of the voters of each state. Massachusetts voters were denied any chance to vote on gay marriage, in part because it was clear they would reject it. And, California voters voted to ban gay marriage just a few years ago only to be overruled by their respective state supreme court. Congress could and should conclude that in both states a judicial-elite-lawyerly oligarchy is being substituted for “a republican form of government.”
In addition, it bears noting that the Supreme Court has ruled that the traditional right to marry is an unenumerated fundamental right under the Fourteenth Amendment in Loving v. Virginia – a right which is “deeply rooted in history and tradition” and thus a component of the substantive due process that even the conservative members of the Supreme Court have declared protected under the doctrine of Washington v. Glucksberg. Congress undeniably has the power under Section 5 of the Fourteenth amendment to protect the rights secured by Section 1. It therefore follows as night follows day that Congress has the power to protect the right to protect traditional heterosexual marriage by simply passing a statute to that effect. No constitutional amendment is needed under current caselaw (which as Judge Bork notes bears little relation to the original understanding of the framers of the Fourteenth Amendment).
But, it might be objected, what if Justice Kennedy and the four hard-left horsepeople of the apocalypse vote to strike down an Act of Congress outlawing gay marriage nationwide? Such a ruling could pose as either a federalism ruling – Congress has the power to do everything under the sun but not to outlaw gay marriage – or it could pose as a federal substantive due process ruling – there is after-all a hitherto unperceived constitutional right nationwide to gay marriage. Such a ruling would galvanize the public in a way nothing else could. The backlash against that ruling might get us the votes to pass a marriage amendment or to at least lobby powerfully for the nomination and confirmation of better judges. It would at least expose the Supreme Court justices to the public as the judicial activists they really are.
Judge Bork’s piece contains an interesting mélange of ideas. I agree with some and disagree with others. But what I find most striking is a deep underlying tension in the argument regarding judicial review of federalism and individual rights cases. Judge Bork believes public opinion governed the former, but that elites determine the latter. In that he is wrong – it is public opinion in both areas.
Judge Bork seems to concede that “public opinion and the realities of national politics” were behind the Supreme Court’s post 1937 decisions allowing Congress broad powers over the national economy. He says that “[c]ontrary to some conservative fantasies, federalism was not killed off by New Deal justices who perverted this aspect of the Constitution.” Rather, “the public wants a large and largely unrestrained national government . . . and they will sooner or later, get justices who will allow them such a government.”
However, Judge Bork claims that the individual rights decisions—which he deplores –are the product of a cabal between “elites and the courts.” He insists they are not “the work of the American public.” Rather, “elites guide the judiciary and make the judges’ decisions acceptable to the public, while the judiciary gives finality to elite opinion in a way that cannot be overturned by legislation.”
As you might have guessed, Judge Bork is half-right. When it comes to judicial review, it is public opinion that is the ultimate determinant. Things might not always have been this way, but they are today. (I explain how we got here, and why, in a book I have coming out next year published by Farrar, Straus & Giroux.)
Before turning to why Judge Bork cannot put one set of cases off on public opinion, while insisting the other is a product of elitism, it is useful to think about how public opinion influences Supreme Court decisions. An unpopular judiciary is subject to all sorts of discipline, court-packing, jurisdiction stripping and the like. In some ways worse yet, officials may simply defy unpopular rulings. It is true that most means of punishing the Court rest in the hands of officials, not the people, but those officials are responsible ultimately to the people. Think of the defeat of Roosevelt’s Court-packing plan in 1937. Absent a skeptical public the plan almost surely would have passed. The public can restrain elected officials, but it also can goad them to action. In short, the Court ultimately is beholden to public satisfaction with its role and its rulings.
Not all judicial decisions will be accountable to public opinion, but the salient ones certainly will be. The New Deal Court’s federalism decisions were extremely salient in their day. But so too have been the individual rights decisions that rest at the heart of Judge Bork’s critique.
When it comes to individual rights Judge Bork seems to imagine the people as sheep. Properly fed and nurtured by the elite, they forget or are prepared to sacrifice their convictions on the altar of judicial supremacy. But how could this be? If there is hay to be made of a Supreme Court decision, someone will make it, and if the people agree with the criticism there will be an outcry against the Court. We have seen this time and again throughout history.
In fact, many in recent years on both sides of the ideological divide have sought to make hay over the Supreme Court’s decisions. For the most part, the people simply have ignored calls to discipline the Court. The Supreme Court’s approval rating regularly tops that of the elected branches of government. Apparently, when it comes to setting important policy, the people actually have more faith in the Court than their elected representatives.
It’s not just the role of judicial review the people like – it is the decisions themselves. Take one set of decisions that certainly ranks among what Judge Bork rues as encouraging “moral anarchy”: those involving gay rights. Bowers v. Hardwick held the Constitution does not protect the sexual practices of gays; Lawrence v. Texas reversed Bowers and held just the opposite. Both decisions can be seen as the product of prevailing public opinion in their times.
Bowers was decided at the height of the AIDS epidemic here in the United States, during a backlash against gay anti-discrimination measures (remember Anita Bryant?), when poll support for legalization of “homosexual sodomy” had dipped to a low in the period. By the time of Lawrence the tables had turned: gay men and women were indeed out and part of the culture Judge Bork deplores, and public opinion polls were sharply negative on criminalizing gay sexual practices. Most states had abandoned their anti-gay laws. Even the high courts of some southern states invalidated their anti-gay bans. Note that after Bowers, a conservative president beholden to his religious right did not criticize the decision (though he did warn about gay marriage, an issue on which the polls were more favorable to his position).
None of this is an argument that Supreme Court decisions should track public opinion, nor is it even an argument that most such decisions necessarily are in line with immediate public opinion. But the decisions Judge Bork attacks are. When it comes to federalism, Judge Bork seems to understand pretty well the relationship between popular opinion and judicial review, whether he approves of it or not. The question is how he can keep his head in the sand about the role public opinion plays in individual rights decisions.
For what it is worth this attack on “elite” values is part of a new conservative attempt to regain the popular middle. It is an odd argument for a political movement with its share of elitism. But it is also a dangerous argument when wielded in this situation. Advancing it, Judge Bork necessarily accuses the public he is trying to reach of being sheep who bleat to the elitist tune. This may not be calculated to win the hearts and minds of his flock.
Robert Bork was serving in the U.S. Marines when Japan surrendered in 1945. He went through Watergate as a senior official in the Nixon Justice Department. When he was nominated to the Supreme Court by President Reagan, he was the target of the first full-scale national smear campaign against a Court nominee in U.S. history. Bork has seen a lot of history. "We that are young/Shall never see so much, nor live so long." I can't dispute much of the constitutional history in his essay, but I would temper some of Judge Bork's conclusions.
First, I can't bring myself to go along with this remark: "the boast that our Constitution has lasted more than two hundred years is largely empty." It's not a small thing that we have never cancelled a single one of our constitutionally mandated federal elections since the first one in 1788. The age and continuity of the Constitution still command respect – and that matters. Think, for example, of how readily the country accepted that the winner of the electoral college majority must become president in 2000, even if the opposing candidate had more popular votes overall.
So, when we debate the meaning of constitutional provisions, what Hamilton or Madison or other figures of the Founding said about the Constitution is never dismissed out of hand. It is sometimes offered, even by courts, as decisive argument in itself. In what other country do citizens accept that the pronouncements of 220 years ago should still have such weight? Yes, debates about the meaning of the Constitution are often entangled in partisan calculations. But public respect for the Constitution remains a brake on the worst political impulses.
Second, I think it's not quite right to say, "The first freedom, implicit and taken for granted in the design of the Constitution, is the power of individuals to participate in making the laws by which they are governed." The Founders certainly hoped to vindicate republican government. But when they thought about the "unalienable rights" with which all men are "endowed by their Creator," they did not start with political "participation" but with rights of individuals to personal freedom – freedom from governmental interference on certain fundamentals. The Founders did not create a system that gave priority to mere majorities. They created an elaborate set of checks and balances to obstruct mere majorities, from concern that majorities could often be reckless, heedless or oppressive.
Yes, our federal government now wields much more power than the Founders seem to have envisioned. But compared to most other western countries, our government takes a smaller slice of the GNP and regulation here is less constraining of private economic initiative. A big part of the reason is that our version of the separation of powers makes it hard to enact gargantuan legislative measures like public control of health care. Our constitutional arrangements also encourage legislative challenges to administrative agencies, which make it hard for Americans to imagine that bureaucrats are neutral experts, deserving great trust and deference. We still live, in all sorts of ways, with the structure of government the Founders bequeathed to us – and it is part of what still makes us the freer country the Founders hoped we would be.
Finally, I demur from the pessimistic conclusion that the "aristocracy the Anti-federalists feared has been created and empowered in large part by [judicial distortions] of the very Bill of Rights they demanded …." The reason there is a "culture war" is that there are deep divisions in the country. To depict this simply as a clash between "elites" and commoners is unfair to the range and quality of conservative voices.
In many areas, conservative concerns are more fully articulated in national debates todauy than they were forty years ago, precisely because the conservative side has found quite sharp and polished advocates. Forty years ago, there was William Buckley. Now there are four or five conservative commentators with Pulitzer prizes and behind them a whole array of younger, feistier writers at a growing number of conservative publications and a wide range of thoughtful commentary from conservatives on blogs and websites (and a lot of rousing argument from the right on radio). Forty years ago, there was Robert Bork and a few friends. Now there is the Federalist Society, with chapters in almost every law school in America and in every major city.
Of course, the Supreme Court has gotten a lot of things wrong. Some rulings – most especially, Roe v. Wade and decisions extending and entrenching it – have had terrible consequences for millions of lives and taken a severe toll on our national morale. But as even Judge Bork acknowledges, the Court depends on cultural elites to "make the judges' decisions acceptable to the public." That we still have such strenuous debates about abortion and the culture of life (or its opposite), even 35 years after Roe, shows that the country is by no means helplessly captive to the opinions and preferences of liberal elites.
America isn't the sort of country where a few high officials can redirect the whole society by pushing some buttons in a national control room. To think the Supreme Court can do that, you must enter the fantastical world of liberal law professors. Precisely because America remains a free country, there are many trends pushing against the hopes of most "university faculties, journalists, entertainers, foundation staffs" and so on – and some counter- trends, even within their own precincts.
If Robert Bork offered a list of the worst Supreme Court rulings of the past forty years, I'd probably agree with at least 80 per cent of his designations. But I think there are reasons to hope that the tenor of his commentary is a bit too gloomy.